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Reflections from Former Chair of the Commerce Commission, Dr Mark Berry

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Reflections from Former Chair of the Commerce Commission, Dr Mark Berry 231 INSTITUTIONAL DESIGN ISSUES AND POLICY CHALLENGES: REFLECTIONS FROM FORMER CHAIR OF THE COMMERCE COMMISSION, DR MARK BERRY Dr Mark Berry* I was asked by the Law and Economics Association of New Zealand to reflect tonight on my time as Chairman of the Commerce Commission (NZCC). I expect that the conference organisers may have wished that I revisited some of the key decisions during my ten year tenure. However, I fear that a retrospective of such cases would be dated, provide no new insights and would most likely be excruciatingly boring for this audience. I would like instead to address two contemporary topics tonight. The first relates to institutional design issues facing the NZCC, and indeed all competition authorities. In particular, I will comment on the vexed issue of the role of the "board" of such institutions. The second topic relates to a central policy issue which arises as a result of the Court of Appeal's observations on the total welfare standard in the NZME Ltd v Commerce Commission (NZME/Fairfax) merger decision.1 This decision may potentially have a far-reaching impact not only on the authorisation process under the Commerce Act 1986 (the Act),2 but also on the goals which underpin this legislation. * Barrister, Auckland. Dr Berry was Chairman of the Commerce Commission from 2009–2019. This speech was delivered to the Law and Economics Association of New Zealand in Auckland on 10 March 2020, and in Wellington on 11 March 2020. Comments and questions are welcome to [email protected]. 1 NZME Ltd v Commerce Commission [2018] NZCA 389, [2018] 3 NZLR 715 [NZME/Fairfax]. 2 Mergers and restrictive trade practices involving market power concerns may be authorised on countervailing "public benefit" grounds: Commerce Act 1986, ss 58 and 67. In assessing the "public benefit", s 3A of the Act requires that regard must be had to any efficiencies that may be likely to result. The concept of "public benefit" can also extend to non-economic considerations: NZME/Fairfax, above n 1, at [54]–[81]. 232 (2020) 51 VUWLR I INSTITUTIONAL DESIGN In my past life, I was repeatedly exposed to the perils of select committee hearings. Endless hours were spent preparing for these hearings. Almost invariably we were blind sided, often on the first question. Such an experience occurred on one occasion when an opposition Labour MP put to me a question along the following lines: "Surely you must be embarrassed that there is no proper accountability for your decisions given that there is no independent board oversight of your work, as happens with most other competition authorities around the world." This question took me somewhat by surprise at the time, given that it came not long after we had endured the extensive merits review proceedings in the High Court against the NZCC's input methodologies decisions relating to the regulated utilities.3 As I recall, I assured the Select Committee that we felt accountable for reasons such as the following: When you are writing decisions that are potentially subject to appeal, you are acutely aware that this form of judicial scrutiny (and accountability) is likely to be extreme. A further layer of judicial oversight (and accountability) applies to cases prosecuted by the NZCC. The requirement to satisfy the court that a case is provable in this setting imposes a form of accountability. There is also public scrutiny and accountability. This form of scrutiny was, in particular, demonstrated in the case of the findings of Justice Hayne in the review of the Australian financial sector.4 No member of an authority wants to be publicly criticised for failing to properly discharge statutory tasks entrusted to them. The reputational risks are high. Finally, there is the political dimension. While I can say that appropriate boundaries of independence were observed throughout my term, it is still not lost on regulators that they are ultimately answerable to the democratic process. Such institutions are likely to rank loss of political confidence in them high on their risk registers. As I recall, I further observed that we had a close working relationship with parallel agencies in Canberra, Ottawa, Washington and London, and that I struggled with the suggestion that their models of board governance were materially different to ours in the way that was being suggested. 3 The input methodologies decisions were subject to a range of process challenges over two years following the issuance of these decisions: see for example Vector Ltd v Commerce Commission [2012] NZSC 99, [2013] 2 NZLR 445. The merits review proceedings extended to 58 substantive challenges: see Wellington International Airport Ltd v Commerce Commission [2013] NZHC 3289. 4 Final Report: Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (Commonwealth of Australia, vol 1, 2019). INSTITUTIONAL DESIGN ISSUES AND POLICY CHALLENGES: REFLECTIONS FROM FORMER CHAIR, DR MARK BERRY 233 This topic arose again from time to time during my tenure, including under the Harper review in Australia.5 No changes to the Australian Competition and Consumer Commission's (ACCC) governance structure were made following this review. In more recent times a New Zealand Initiative (NZ Initiative) study suggested that the NZCC should adopt the governance model used by the Financial Markets Authority (FMA).6 They further appeared to assert that such an approach to governance accorded with the way that the relatively new United Kingdom Competition and Markets Authority (CMA) operates. In summary, their key recommendations included that:7 Commissioner roles should be largely reshaped as governance roles (involving only two to four days per month);8 and substantial decision-making power should be delegated to the CEO. These observations potentially point to two different governance models. The NZ Initiative model is the one tier board model. The political observation referred to above may be more suggestive of a further supervisory board model.9 The governance of competition law agencies is not a straightforward topic. It is one thing to talk about perceived ideal models of governance, based on corporate governance. It is quite another thing to understanding the workings of these institutions and how governance adjustments may impact. An appreciation of not only theory is required. The nature of the institution and the tasks it is required to perform, the subject matter under review and the pragmatic workings of these institutions are also relevant considerations. I think it is informative to reflect on the following issues: Where does the NZCC stand in the context of international systems of governance for similar institutions? What are the implications for governance where the institution is obligated to perform extensive quasi-judicial decision-making tasks? What is the comparative nature of the subject matter? 5 Ian Harper and others Competition Policy Review: Final Report (Commonwealth of Australia, March 2015) [Harper review]. 6 Roger Partridge and Amy Thomasson Who Guards the Guards? Regulatory Governance in New Zealand (The New Zealand Initiative, 2018). 7 At 79. It was also recommended that the skill set of Commissioners be broadened to include more members with industry experience. 8 At 52–53. 9 For an outline of these two governance models see Annetje Ottow Market and Competition Authorities: Good Agency Principles (Oxford University Press, Oxford, 2015) at 108–109. 234 (2020) 51 VUWLR Conflicts of interest. Is there a better model? A International Systems of Governance In 2004 New York University Law School launched its Global Administrative Law project. This project was developed against the backdrop of globalisation, the shrinking of borders between countries and the rise of international systems of governance. This project extended to competition law agencies. A major work was published in 2013 which reviewed the antitrust law institutional frameworks of a wide range of jurisdictions, including New Zealand.10 This is perhaps the best survey of its kind. The NZCC's current institutional design is not out of line with a multitude of other agencies. While there are variations between jurisdictions, most involve Commissioner roles along the lines followed in New Zealand. With reference to our closest agencies, we are a mirror image of the ACCC, and the Canadian Competition Bureau, the Federal Trade Commission and the Antitrust Division of the United States Department of Justice do not have board governance roles of the kind advocated above. The position of the United Kingdom CMA is more complicated. This body is the product of a comparatively recent merger of two agencies: The Office of Fair Trade and the Competition Commission. I spent some time at the CMA during my tenure. They readily acknowledge the complexity of their institutional design. Further, not all decision-making rests under delegation with the CEO, as the NZ Initiative suggest. For example, two significant areas of carve out are Phase 2 mergers and market studies. Mergers are considered in two phases. Phase 1 cases involving no obvious competition concerns are delegated. This is hardly surprising in a jurisdiction where there is a flood of applications under a mandatory notification regime. I expect the same approach would be adopted here, if we faced the same problem. Significantly, however, all merger cases involving some complexity progress to Phase 2 scrutiny for decision by a panel. On my last visit to the CMA in 2018 I spent time discussing their approach to market studies, given that we were about to get these powers. The CMA is probably the leading international authority on market studies, and it is a significant part of their work. I was informed that all board members are fully involved in the substantive analysis of market studies, at every turn. Decisions here are made by the CMA board.
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